Chalk on the Spikes: What is the Proper Role of Executive Branch Lawyers, Anyway?

Marty Lederman

Well, Sandy's provocative challenge certainly deserves a response. Unfortunately, I don't have time for a full retort right now, because I'm consumed with other projects. Fortunately for me, I've already drafted or signed a couple of things that are a partial response, at least. One is this memo that I drafted along with 18 of my former OLC colleagues, articulating what we think are some of the "best practices" of that office. It is concedely aspirational: Although it describes, I think, the way the office usually operates, at least at its best, obviously it is not hard to find counterexamples, from any and all Administrations.

Also, my very first post to this blog identified some of the process-based ways in which OLC opinion-writing can go astray, with reference to the contrast between the two OLC torture memos.

Finally, last New Year's Eve, Jack published a post raising questions about government lawyering very similar to those that Sandy raises. In response, I drafted the following post that evening. (I'm not big on New Year's Eve celebrations.) Because I didn't have time to work on it, it never got to the point where I was satisfied with it. I'm still not satisfied. But I'm not going to work further on it anytime soon, so I thought it might be worth publishing now, at least as a rough first cut at some of the questions Jack and Sandy raise. And since its subject is, in some sense, constitutional "faith" -- namely, what it means for the President to "faithfully" execute the law -- perhaps it's appropriate to publish it now, in response to my far-too-generous-with-praise friend Sandy. All caveats relating to such a rough draft apply, of course:

Jack's post on lawyering raises some very interesting questions. Surely he's right that lawyers -- really good, respected lawyers -- have always been available to defend the indefensible. (By "indefensible" here, I am not referring, as Jack principally is, only to that which is morally indefensible, such as waterboarding; I'm also referring to conduct that might be perfectly acceptable from a policy perspective but that doesn't have a legal leg to stand on, such as the NSA wiretapping program.)

One minor observation: Although Jack is surely correct that some such lawyers are "rhetorical whores," willing to justify whatever their clients wish, or whatever will support their preferred political or policy objectives, that doesn't describe all that's occurring in these cases. I assume that Cass Sunstein, for instance, truly believes that the AUMF may have superseded FISA. I think that conclusion is egregiously, indefensibly wrong -- but Sunstein is not arguing it because a client has asked him to push the envelope or because he'll reflexively defend whatever the Bush Administration does: He's speaking his mind. Similarly, although many lawyers who tried to defend Bush v. Gore (including the writers of the per curiam) almost certainly did not believe what they were arguing, there are those (Nelson Lund, for example) who are, from all that appears, sincere defenders.

But I'd like to focus here on a more fundamental question that Jack's post raises but doesn't discuss in detail: whether lawyers -- especially government lawyers -- should be so "creative," at least in cases (unlike torture or slavery) where the legal judgments are not in the service of moral evil. "Is" doesn't equal "ought," of course, and so the question arises: Is it acceptable for government lawyers to (in Jack's words) "push the envelope on behalf of their client," where they believe that the policy being supported is morally defenisble? And, if so, to what degree?

The question is much, much harder than most people think -- and it's very different from the same question as applied to lawyers in private practice. If a private client asks a lawyer to push the legal envelope, client and lawyer both understand that there's a risk that the advice will turn out to be wrong in the eyes of the authorities, with possible legal consequences for the client. If the lawyer is any good, the advice will reflect such risks. In other words, the lawyer's job is to tell the client both what the "best" view of the law is, and what is at the outer bounds of legal arguments that might (but probably won't) carry the day.

The Executive, however, is the prosecuting entity. Thus, when an OLC lawyer or the AG advises that a course of conduct is lawful, she is not simply giving the President advice about possible legal exposure; she is, instead, effectively determining what the law will be as a practical matter -- she is sanctioning the conduct, and immunizing it against future prosecution by the Executive, at least insofar as the advice is within the bounds of what the legal culture deems "reasonable." (If the advice is widely viewed as wrong, the Executive may pay a cost in its relations with Congress, or the court of public opinion, or even in international courts or civil cases, where relevant. But it's inconceivable that the Executive would ever prosecute someone who reasonably relied on OLC or AG advice -- in part because of serious due process concerns.)

Given this lawmaking function of DOJ advice, is the DOJ lawyer obliged to provide the best view of the law, or is pushing the envelope, within the outer bounds of the "reasonable," acceptable? I start from the proposition that I hope all will share that it is the role of Executive lawyers -- the AG and OLC lawyers, in particular -- to assist the President in his constitutional obligation to faithfully execute the law. OK, but how broad is the range of faithfulness, or fidelity? And "faithful" to . . . what, exactly?

As a general matter, OLC attempts to give the President the "best" view of what the law allows, where "best" is generally understood to mean the answer to which the governing legal doctrines would most likely point (more or less akin to what a lower court does when it's trying to follow the "rules laid down" by the Supreme Court). If that view means that the President cannot undertake his preferred course of action, then in that case OLC has performed its proper role -- it's really the only entity within the Executive branch that is in place to impose such legal limits -- and OLC ought then to work with the White House to see if there is some other, lawful way to accomplish the President's ends, at least in part.

But let's be honest -- such a typical "neutral expositor" model does not invariably describe the advice that OLC and DOJ give the President, especially in matters related to war and national security. Historically there have been clear cases in which what the AG or OLC has done is to try to come up with a justification for Executive conduct that lies at one extreme of the range of possible "reasonable" legal answers, but that is fairly clearly not the "best" view of the law.

Perhaps the most notorious example was Attorney General Robert Jackson's opinion (prior to the Lend-Lease Act) that existing statutes gave the President the authority to acquire from the British Government rights for the establishment of naval and air bases in exchange for over-age destroyers and obsolescent military material. See 39 Op. A.G. 484 (1940). This opinion was roundly (but not uniformly) criticized as being an extremely tendentious, that is to say, mistaken, reading of the relevant statutes -- but obviously, Jackson was comfortable that it was within the bounds of what the legal culture would allow, even if he did not think that it represented the "best" legal answer to the important question that was posed to him.

Another, more modern example occurred in 1986, when Samuel Alito was one of the Deputy Assistant Attorneys General at OLC. A statute required the Executive to give prior notice of covert intelligence activities to eight members of Congress, and post-conduct notice to the intelligence committees "in a timely fashion." President Reagan did not give prior notice of the Iran-Contra affair to anyone in Congress, and delayed the post-conduct disclosure on a completely discretionary basis. OLC wrote an opinion concluding that this failure to provide notice satisfied the statutory mandate, see 10 Op. O.L.C. 159 -- what Professor Jeff Powell described as "the bizarre outcome . . . that a statute meant to limit the President's discretion places no practical limits on that discretion." The President's Authority Over Foreign Affairs at 13 (2002). As Powell rightly explains, the OLC opinion "is an exercise in statutory construction only in the Pickwickain sense that it assigns meanings to the words Congress enacted. If, as is generally assumed, the purpose of statutory construction has something to do with identifying and applying what presumable was the will of the legislating body--however difficult that may be in practice and even in theory--the opinion is a simple and indeed unembarrassed failure as a reading of section 501." (This is basically my view of DOJ's current reading of FISA and the AUMF -- but obviously others disagree.)

The key word here is "unembarrassed." OLC was more than willing to offer what was very plainly not the best reading of the statute, but a reading that OLC thought was at the far edge of the plausible and that least impinged on what OLC viewed as the President's constitutional prerogatives. (The statutory construction in the 1986 Timely Notification opinion was actually not the most outrageous thing about it -- that honor is reserved for the opinion's understanding of Congress's authority in the fields of foreign affairs and national security. But that's a subject for another day . . . .)

From everything I know, this is the model of legal advice that President Bush has expected of his lawyers, including OLC lawyers, with respect to the war against Al Qaeda. In Dana Priest's remarkable story the other day about the aggressive legal interpretations in this Administration in support of CIA covert action, there's this wonderful quotation from Deputy Director of National Intelligence Michael Hayden about their approach to the law:

"We're going to live on the edge. . . . My spikes will have chalk on them. . . . We're pretty aggressive within the law. As a professional, I'm troubled if I'm not using the full authority allowed by law."

This confirms what I've read in several places and what I've heard from numerous lawyers in the Executive branch: What the White House has asked of them is not to provide the "best," or most objective, view of the law, but instead to read the law as aggressively as humanly possible so as to give the President the broadest possible discretion in preventing another domestic attack: Don't worry so much about exactly where the line is -- it's ok to get chalk on your spikes. Lives are at stake. [UPDATE: Confirmation from Newsweek: "The message to White House lawyers from their commander in chief, recalls one who was deeply involved at the time, was clear enough: find a way to exercise the full panoply of powers granted the president by Congress and the Constitution. If that meant pushing the boundaries of the law, so be it."]

They are completely unapologetic about this. And I don't think it is obviously the wrong perspective to be using (even if it is very troubling if all the lawyers in the Executive Branch are using this standard, and no one is advising the President of what the best view of the law is). Of course, some of their legal advice -- the August 2002 Torture Memo, in particular -- has been far, far outside even the most extreme bounds of what's reasonable: The chalk is but a distant memory there. And I'm not defending that. But I think it is a very hard question whether Executive branch lawyers ought to "push the envelope," within the bounds of what the legal culture views as "reasonable," in order to enhance presidential authority in matters of national security.

I'm curious to hear what others think of this difficult question. But this much, I think, should be clear: If the Executive Branch is going to adopt such extreme legal views, it must do so publicly, in a way that allows for critique and democratic accountability. If it is acting on idiosyncratic, and extreme, readings of the law, it is wrong to hide that fact from the public -- to pretend as if it's business as usual. Justice Jackson's view of the legality of the destroyers deal might have been wrong, but he and the President announced the sale to the Congress and had the courage to provide the legal analysis supporting it -- thus giving Congress and the public the opportunity to apply checks and balances.

The practice in this Administration has been the polar opposite.

It is not acceptable to announce repeatedly to the world that we don't torture, that we abide by all our treaty obligations, and that we treat detainees "humanely" -- only to engage in secret waterboarding and hypothermia, based on equally secret legal determinations that construe the words "torture" and "humane" in an Orwellian fashion, that diminish treaty obligations down to nothing, and that assert a right of the President to ignore all statutory limits.

It's not ok to give the world the impression that we are staying true to our 50-year-old tradition of compliance with the minimum protections of Common Article 3 of the Geneva Conventions, whilst secretly trampling all over those protections.

It's not proper to give the public and the Congress and the FISA Court the impression that the Administration is in perfect compliance with FISA, all the while secretly approving a massive surveillance program that flatly violates FISA -- and that is based on a secret conclusion that Congress unknowingly approved such a program when it authorized the use of force against Al Qaeda.

We can argue about the virtues, the propriety, of unorthodox readings of the law by the Executive -- of going right up to the line and getting chalk all over one's spikes. But even if unorthodox, and pro-Executive, and aggressive, readings of the law are in some cases permissible, what should be beyond the pale is acting in accord with a body of secret law.

What is that Brandeis quote? "The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."

I admit to being a law student and maybe not exactly qualified to wade into these complex debates over government lawyer ethics, but whenever I see these debates I think of the "Judges' Trial" at Nuremberg, where lawyers and judges were punished, in part for "pushing the boundaries" of legal opinion and process and in so doing committed war crimes themselves.

With as much legal intuition (I won't call it knowledge) that a law student could bring to the inner workings of the executive branch, I would say that a government lawyer has a multi-tiered responsibility (1) to the his immediate boss (2) to the people and (3) to the Constitution, in a relationship maybe closest to a corporate form of responsibility. And that's easy enough to say (or post on a blog).

But the problem for an executive branch lawyer might be when he starts believing that the policy that he is advocating for is already the law. It's the fine distinction between "You can do this" and "You can do this if we get Congressional authorization or we take it to the courts." And that subtle distinction can be easily blurred by executive branch officials looking for aggressive interpretations and morally certain (if not emboldened by an "accountability moment") that they are doing the right thing.

But I don't think it's a dilemma altogether different than a tax lawyer who gets told by an officer of a corporation to create a special purpose tax vehicle that pushes the boundaries of tax law in order to accomplish a structured finance transaction. Those are close calls too. And sometimes too creative an interpretation will get you fined or imprisoned.

The line between creative executive branch thinking and criminal acts however isn't one you can draw through scholarship or study I would think. It's a political one that's ultimately going to be drawn by Congress through investigations or subsequent administrations who want to go forward with prosecutions.

Also, I think there is an important policy tension running throughout this situation that law bloggers don't always note. Currently, you have a situation where:

X, executive branch official tells Y, executive branch lawyer to create a policy that may violate the law. Both X and Y are insulated. The policy works its way down the executive branch and then Z, an ordinary soldier commits a crime in part because of these policy changes and gets prosecuted, convicted and sent to jail by the very same Executive Branch asking for the boundaries to be pushed.

People like Lyddie England get court martialed while John Yoo gets invited to a symposium. That inequity can't be good for the law, the legal profession or the republic.

I don't think the problem is so much that they haven't said "we're using 'creative' legal arguments here"--as Prof. Levinson says no lawyers ever do that. The problems are:

1) they classify these memos entirely

2) they are using the "creative" legal analysis to actively deceive people about the substance of their policies.

They hold a press conference explaining that we treat all prisoners humanely, we do not torture, we do not suspects to countries where they are at substantial risk of torture, all these prisoners are enemy combatants captured on the battlefield. They say these things expecting and hoping that people will believe they're using the ordinary meaning of the words "torture," "humane," and "battlefield"--when in fact their statements are only true if you define the terms exactly as they're defined in some classified OLC memo.

This goes beyond the standard "of course the law is on our side" argument that virtually all lawyers use.

"Of course the law is on our side" say the lawyers. But that side does not always prevail. The other side is confident that the law is on its side. That is the adversarial system of justice. There are winners and losers.

In private practice a client may ask her attorney to get as close to the line of legality as possible regarding a course of action or position the client wants. There is not always a bright line, so the attorney may have to work in the dusk of the gray area. Or, if there seems to be a bright line, then perhaps the line can be moved to accommodate the desires of the client.

In public law, the attorney may have greater obligations than in private practice. Exactly who is the public lawyer's client? The public official for whom she works? Or is there an obligation to "We the People"? I think of John Dean, who fell on his sword.

The law student's comments are quite apt. Regarding his reference to the tax lawyer, it should be pointed out that it has only been in recent years that tax advisors have been reined in; and despite such reining in, we have had KMPG et al involved with what appear to be egregious tax opinions/advice, the consequences of which yet remain to be sorted out over many years. Can "We the People" wait that long to have addressed the public lawyer situation under George W? With the egregious tax opinion/advice, only money is involved.

I would be satisfied with "unembarrassed" OLC opinions, if that meant that they were exposed to the light of day so everyone knew the administration position.

The Alito memos were mentioned above. Were these available to the public or Congress ahead of actions performed by the Reagan Administration, or were they also "secret law" as with the Bush II Administration?

Thus, when an OLC lawyer or the AG advises that a course of conduct is lawful, she is not simply giving the President advice about possible legal exposure; she is, instead, effectively determining what the law will be as a practical matter -- she is sanctioning the conduct, and immunizing it against future prosecution by the Executive, at least insofar as the advice is within the bounds of what the legal culture deems "reasonable." (If the advice is widely viewed as wrong, the Executive may pay a cost in its relations with Congress, or the court of public opinion, or even in international courts or civil cases, where relevant. But it's inconceivable that the Executive would ever prosecute someone who reasonably relied on OLC or AG advice -- in part because of serious due process concerns.)

nonliquet said:

X, executive branch official tells Y, executive branch lawyer to create a policy that may violate the law. Both X and Y are insulated. The policy works its way down the executive branch and then Z, an ordinary soldier commits a crime in part because of these policy changes and gets prosecuted, convicted and sent to jail by the very same Executive Branch asking for the boundaries to be pushed.

These comments raise for me a critical question: to what extent does "advice of counsel" provide a defense to members of the Executive Branch who act on that advice?

It seems to me that if it is a defense, that raises serious policy implications about the staffing of and advice given by OLC. It makes no sense to allow the Executive to immunize itself in this fashion.

If OLC advice does not create any legal defense, then the behavior of OLC at least remains subject to political control by the public/Congress and judicial oversight. In this case, Prof. Lederman's and Katherine's point about public disclosure of the advice becomes crucial.

On the more general issue whether lawyers should "confess" to being creative, I can only answer from my own practice. Only once or twice have I told a court that I wanted it to make new law. The response was discouraging -- the court had no interest in doing that. The legal fiction that "the law was ever thus" seems ingrained in judges and constrains the attorneys. It's more practical to assert a general principle which is broad enough to cover the case and then argue that said principle always was the law.

I'm not yet a law student, so I apologize in advance for my ignorance, but: Why is advice of counsel ever a defense for anyone? Any malefactor, whether in the government or the private sector, can hire a lawyer and tell them to produce some tortured legal reasoning to justify an action that's plainly illegal. It seems like such a gaping loophole that it should either (a) be prohibited, or else (b) be used frequently by all sorts of defendants.

I'm simplifying, but in general advice of counsel can be a defense to certain mental states. For example, under CA law (where I practice) advice of counsel can be used as a defense against a claim of bad faith.

This does not mean that the judge or jury must accept the defense, it just means that it can be offered. However, if someone does seek legal advice, and the advice IS given in good faith, then it would surely be wrong to find the client acted in bad faith.

Note that in this situation there's a control on the attorney and client -- the judge or jury must accept that the attorney gave advice which may have been wrong but was nonetheless within the "ballpark".

I'm not sure what the law is with respect to advice by OLC. Prof. Lederman seems to be suggesting a greater impact for advice of counsel than I understand, but I could be wrong. However, at http://gulcfac.typepad.com/georgetown_university_law/2006/07/top_ten_myths_a_1.html he says (in an excellent post):

"But in my view (for reasons I don't have time or space here to elaborate), due process would almost certainly prevent prosecution for any conduct undertaken in reliance upon reasonable OLC advice; and before last Thursday, the conclusion that CA3 did not apply to the conflict with Al Qaeda, although perhaps wrong, was certainly reasonable (indeed, it was accepted by the now-Chief Justice of the United States). I know others will disagree with me on this. But I think it's safe to say, at the very least, that neither this Administration nor any future Administration will prosecute U.S. officials under the War Crimes Act for violations CA3 against Al Qaeda that occurred prior to June 29, 2006."

Happy July 4th to all of you. I just made a flash game where uncle Sam is seen throwing knives at Joe Lieberman called Back Stabbing Lieberman. Check it out at my site here: http://zenwire.com/flashmedia-lieberman.php. There are also other games there: bush rampage, bush-rice-terror, bush shootout, dancing bush and Blair and other political games as well. Feel free to comment for I plan to make more.

Anyways, back to the meaning of July 4th for my kids.

I was watching all the fireworks outside with my kids, and my 8 year old daughter asked me to explain what was Independence day all about. I gave her the story about colonial settlers under British rule and how we united with help to fight off the Brits and finally won our independence for the right to self rule. And when I told her that this is when our founding fathers wrote the Declaration of Independence, and she asked me what was that? I did not remember most of the words, but incredibly my wife did and we utter some of those magic words together. I told her that when I was a kid and read those words, I thought that they were the most beautifully written words I had ever read. And I told her that the meaning and values of that document was why I love America so much; this was the country that taught me what it meant to be equal and fair, good and just. But I also told her that half of it is no longer true, and my son, a typical Nintendo kid, interjected: “You mean, like Bush.” I did not even have to reply or convince him, somehow he already knew. In a way I should be glad that even my kids can see what is going on, but somehow I actually felt sad. Sad because they don’t know the full weight and tremendous implications of those words written so long ago. Sad because they don’t realize the power of words and the actions they can generate; and those specific words were so powerful that countless men have willingly died through the eons in their fleeting attempt to manifest and live out those words and its ideals. And sad because I grew up in a world full of idealistic ideas and enthusiasm, teaching us to not only help and improve ourselves, but all of humanity and mankind as well. Reaching the moon and back was just a small sampling of things to come. I am what I am is because of these words and it makes me sad to realize that my kids will not have these words and the absolute belief and trust in those very words (inscribed by our founding fathers) to guide and instill in them a sense of justice and equality. They know the world is not fair and they will never expect it to be fair. I have always hoped the world will be so, but I can no longer say this with a straight face to my kids that the world will be this way when they grow up or if it will ever even get any closer to those ideals; just like the moon is no longer feasible to travel to anymore, there is easy money to be made elsewhere subjugating the people of this planet.

After reading the Declaration of Independence at this site: http://www.law.indiana.edu/uslawdocs/declaration.html, it struck me that I was wrong in telling my daughter that half of it was no longer true. I actually thought that most of it is no longer true. For brevity, skipping the preamble and just going through the grievances, I saw many justifiable grievances then that equally apply to now, the year 2006. Just read them for yourselves and see how many of them our government is guilty of or in the process of taking those very same rights away. I will mark the ones I feel they are guilty of.

Guilty: He has refused his Assent to Laws, the most wholesome and necessary for the public good. Guilty: He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them. Guilty: He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only. Guilty: He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures. Guilty: He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people. Guilty: He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within. Guilty: He has endeavored to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands. Guilty: He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers. Guilty: He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries. He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance. He has kept among us, in times of peace, Standing Armies without the consent of our legislatures. Guilty: He has affected to render the Military independent of and superior to the Civil power. Guilty: He has combined with others to subject us to a jurisdiction foreign to our constitution and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: Guilty: For Quartering large bodies of armed troops among us: Guilty: For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States: For cutting off our Trade with all parts of the world: For imposing Taxes on us without our Consent: Guilty: For depriving us, in many cases, of the benefits of Trial by Jury: Guilty: For transporting us beyond Seas to be tried for pretended offences: For abolishing the free System of English Laws in a neighboring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies: Guilty: For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments: Guilty: For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever. He has abdicated Government here, by declaring us out of his Protection and waging War against us. Guilty: He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people. Guilty: He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty and perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation. Guilty: He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands. Guilty: He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions. In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people. Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

Ok that is enough for Independence day, and be sure to chech out all the political games at http://zenwire.com Take Care,Zenseeker

Basically lawyers feel free to skate on the ragged edge because they see no consequences. So the question is should people such as Yoo be disbarred, tried for the consequences of their opinions and imprisioned or perhaps more.

Jack's column a few weeks ago attained the same view, though the title on his post made it look like it discussed only fourth amendment concerns; rather, it seemed like the article itself described fairly well the slippery slope now nearly four years in building.